State Consumer Disputes Redressal Commission
Jagdish Rai S/O Ram Sawroop vs M/S Parshotam Periwal & Bros. on 8 October, 2013
2nd Additional Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB
DAKSHIN MARG, SECTOR 37-A, CHANDIGARH
First Appeal No. 1252 of 2010
Date of institution: 20.7.2010
Date of Decision : 8.10.2013
Jagdish Rai S/o Ram Sawroop r/o Village Haripura, Tehsil Abohar, Distt.
Ferozepur, Punjab.
.....Appellant/complainant
Versus
1. M/s Parshotam Periwal & Bros. Mandi No. 2, Abohar through its
Partner/Prop.
2. M/s Rasi Seeds Pvt. Limited, 273, Kamaraja Nagar Road, Atttur-
636102 District Salem, Tamil Nadu through its M.d./Director.
.....Respondents/opposite parties
Argued By:-
For the appellant : Sh. Yogesh Aneja, Advocate
For respondent No.1 : Ex.-parte.
For respondent No.2 : Sh. Munish Joshi, Advocate
First Appeal against the order dated 5.4.2010
passed by the District Consumer Disputes
Redressal Forum, Ferozepur.
Quorum:-
Shri Gurcharan Singh Saran, Presiding Judicial Member
Shri Piare Lal Garg, Member Shri Jasbir Singh Gill, Member Gurcharan Singh Saran, Presiding Judicial Member The appellant/complainant (hereinafter called 'the complainant') has filed the present appeal against the order dated 5.4.2009 passed by the District Consumer Disputes Redressal Forum, Ferozepur (hereinafter called "the District Forum") in consumer complaint No. 617 dated 18.12.2009 vide which the complainant was dismissed.
2. The complainant has filed the complaint under Section 12 of the Consumer Protection Act, 1986 (in short 'the C.P. Act') on the FIRST APPEAL NO. 1252 OF 2010 2 allegations that he purchased cotton seed with 6 packets each RCH- 134-BT and RCH-134-BG II 45, Lot No. 312300, 330563 from OP No. 1 duly produced by OP No. 2 vide invoice No. RE/1197/Seed dated 5.5.2009 for a sum of Rs. 9660/-. At that time OP No. 1 had assured to the complainant that Seed is of good quality and is virus resistant and yield will be approximately 10 quintals per hectare. Accordingly, he purchased these seeds and sown these seeds in his 6 acres land as per the instructions of the opposite parties and also sprayed the necessary pesticides and fertilizers as per the advice and instructions of the Ops. After passing few months, the complainant noticed that there was no proper growth of the plants and the fruit was very less. The height of the plant was very less at 2.5 feet and the complainant immediately contacted the Ops but they did not give any satisfactory reply. Then he approached the Agriculture Department and ADO of the Department visited the fields of the complainant and gave his report in which he has mentioned that the crop has been extensively damaged to the extent of 70-75% and the height of the crop is also short that is 2-3 ft. and fruiting is also less. The search was carried out by the Cotton Section, Department of Plant Breeding and Genetics, PAU, Ludhiana and it was found that RCH 134 BG was responsible for the serious outbreak of CLCUD unit. It was also submitted that BT cotton seed has better yield and has the capacity to withstand the attack of the pests etc. and 25-26 fruiting stemps and the crop matures within 160-165 days and cotton balls are of 3.5 grams each. However, due to supply of inferior seed and bad quality the complainant suffered a huge financial loss. There FIRST APPEAL NO. 1252 OF 2010 3 should have been 60 qntls of cotton crop and prevalent market price of cotton crop is Rs. 3500/- per quintal, therefore, he suffered loss of Rs. 1,50,000/- and it is taken upto 75%. In this way, the Ops have indulged in unfair trade practice. They did not attend the allegations of the complainant even despite given the notice, hence, the complaint with the direction to the Ops to pay Rs. 1,50,000/- i.e. loss of the crop with interest @ 18% per annum with Rs. 20,000/- for harassment and mental agony and Rs. 4,000/- as litigation expenses.
3. The complaint was contested by the Ops. OP No. 1 in his reply has taken the preliminary objections that the complainant is barred from filing the complaint by his own act and conduct; the complainant has no cause of action as he is not a consumer; the complainant is guilty of concealment of material and relevant facts; the complaint has been filed just to cause unwarranted harassment to the Ops; no seed can be proved defective without proper analysis from the Government Laboratory as held by the State Commission in case "The Haryana Land Reclamation Development Corporation, Hissar versus Shamsher Singh & Sher Singh and others", CLT 1998 I 114 and "Rajinder Singh Versus Varinder", 1994(1) CPJ 127 Haryana. On merits, it has been admitted to the extent that the complainant had purchased cotton seed stated in the complaint from OP No. 1 against proper bill and that seed was of good quality. The opposite party never gave any direction with regard to method of sowing the seed. No assurance was given that the crop will be disease free. It has been denied that the complainant will use Rassi Seed in his six acres of land as alleged in the complaint. The dosage FIRST APPEAL NO. 1252 OF 2010 4 of seed of 6 acre is very low as per the recommendation given by PAU, Ludhiana as two packets were sown for 1 acre land whereas the complainant has used 6 packets for 6 acres land. The Ops never gave any instructions/guidelines regarding spraying of pesticides. The complainant has not consulted any expert of Agricultural Department or has not taken any opinion from the Ops before use of pesticides. The complainant does not disclose the type of harmful insects and Sundies or whether all precautions were taken before the spray. The Ops never make any promise as to yield as the yield depends upon so many external as well as environmental factors. In the report of Agricultural Department dated 15.9.2009 it has been mentioned that the Agricultural Department Officer had visited the spot and reported that crop has been damaged upto 70% to 75% with leaf curl disease and it is not stated that there was any defect in the seed in question. Had the seeds were defective then he would have written in his report. He has mentioned in his report that the damage of crop, if any, because of leaf curl disease. This disease is caused by white fly transmitted virus and is not related with the quality of the seeds. Further as per the recommendations of the Agricultural Department, only 127 Kg. DAP and 130 Kg. Urea fertilizer is to be applied whereas the complainant has used the fertilizer of his own choice. Accordingly, it has been stated that there is no merit in the complaint and the same be dismissed.
4. OP No. 2 has filed the written statement those are almost on same lines on which the OP No. 1 has filed the written statement. FIRST APPEAL NO. 1252 OF 2010 5
5. The parties were allowed by the learned District Forum to lead their evidence.
6. In support of his allegations, the complainant had tendered into evidence his affidavit Ex. C-1, application before Agricultural Officer Ex. C-2, Bill Ex. C-3, report of Agricultural Dev. Officer, Abohar Ex. C-4, legal notice and postal receipt Ex. C-5, report/letter of Asstt. Plant Protection Officer, Abohar Ex. C-6, lease deed Ex. C-7, photograph Ex. C-8, survey report Ex. C-9. On the other hand, the opposite party had tendered into evidence affidavit of Sunil Periwal Ex. R-1/A, affidavit of Naveen Matto Ex. R-2/A, literature on cotton crop Ex. R-3, 4, 5.
7. After going through the allegations in the complaint, written statement, evidence and documents on the record, the learned District Forum in its impugned order observed that there is report of ADO, Khuian Sarwar at Abohar in which he has found the damage to the crop upto 70-75% as it was affected with leaf curl disease. In Ex. C-6, Assistant Plant Protection Officer, Abohar written a letter to SDO (Civil) Abohar that in the season 2009-10, the environment in the area of Abohar remained hot and dry, which was a favourable environment for the growth and development of the white fly, which is responsible for leaf curl disease and RCH 134 BT was maximum affected with this disease, therefore, as per this letter the loss to the crop has occurred due to the environmental dryness and due to spread of leaf curl disease. There is no evidence on the file that the opposite party had ever claimed that the seed manufactured by them are resistant to leaf curl disease and in the absence of that FIRST APPEAL NO. 1252 OF 2010 6 evidence in case such disease has affected the crop, the Ops could not be held responsible and loss was not entirely due to any defective quality of the seeds, therefore, the learned District Forum did not see any merit in the complaint and the same was dismissed.
8. Aggrieved with the order passed by the learned District Forum, the appellants/opposite parties No. 1 & 2 has filed the present appeal.
9. In the grounds of appeal, it has been contended by the counsel for the appellant that the learned District Forum has failed to consider the fact that as per the report of the ADO, the crop of the complainant had damaged as the seeds sold by the Ops were defective. The search was also carried out by Cotton Section, Department of Plant Breeding and Genetics, PAU, Ludhiana and it was found that RCH 134 BG II are responsible for serious outbreak of CLCUD. The respondents never visited the fields of the appellant despite request. Further the National Commission in the Judgment "Hameed and Co. Vs. Basvarajappa and others", 2009 CJ 1022 (N.C.) has held in case high yield seeds getting only 80% output, it amounts to unfair trade practice. It has been only held by the learned District Forum that the loss has occurred due to environmental dryness, accordingly, the order of the learned District Forum is liable to be set-aside.
10. The main question for determination is whether the seed supplied by the respondents/Ops were of inferior quality as a result of that the yield of the crop of the appellant/ complainant was less. As per the report of the ADO, the damage to the crop was 70-75%. Due FIRST APPEAL NO. 1252 OF 2010 7 to leaf curl virus, the height of the plant was 2-3 ft. and fruiting was very less. There is another report of Assistant Plant Protection Officer, Abohar in which he has observed that RCH 134 BT cotton crop is maximum affected with leaf curl virus. Therefore, the disease was due to the nature of the seed or being defective in nature. However, it is only the observation made by the Assistant Plant Protection Officer, Abohar there is no laboratory report that seed RCH 134 BT is maximum affected with leaf curl virus. There is no definite opinion that the yield was less due to defective seeds rather it has been mentioned that season was very hot and dry and maximum affected of white fly, therefore, environmental reasons can also affect the leaf curl virus.
11. In the complaint, it has been mentioned by the complainant that Cotton Section, Department of Plant Breeding and Genetics, PAU, Ludhiana it was found that RCH 134 BG II are responsible for serious outgoing of CLCUD Unit but no such report has been placed on the record to determine that factum. However, there is a report "Evaluation of Bt Cotton Hybrids North Zone 2007-08 prepared by Project Coordinator (Cotton Improvement) All India Coordinated Cotton Improvement Project Central Institute for Cotton Research Regional Station, Coimbatore submitted to Indian Council of Agricultural Research, New Delhi" whether in Pathological Evaluation Cotton Leaf Curl Disease has been mentioned as under:-
"Cotton leaf curl disease The combined analysis of the two year data revealed that the test hybrid BCHH 6488 - 2 BG II (Mean Disease Index 47.6) and the check hybrid - LHH 144 (Mean D.I. 37.15) had lower disease indices than the FIRST APPEAL NO. 1252 OF 2010 8 Standard resistant check - F 1861 (Mean D.I. 48.75). The rest of the hybrids had diseases indices ranging from 121.75 (CSHH 198) to 277.86 (JKCH 1945 Bt) and found susceptible to the disease. The susceptible check - RS 921 had the highest possible disease index of 400.00 (Table
78).
and in overall assessment it has been observed as under:-
"E. OVERALL ASSESSMENT The population of jassids and whitefly was found in equal numbers on both the test entries and the check hybrids during both the years. Per cent square damage in Bt cotton hybrids ranged from 0.1 to 0.3 per cent as against 2.4 to 2.8 per cent in non Bt. Check hybrids. Bt hybrids recorded lower boll and lucule damage. There was no significant variation in natural enemy population between Bt and non Bt hybrids.
Under protected conditions, as compared to the Bt check hybrid, only RCH 134 BG II was superior in seed cotton yield (2472 kg/ha; 1.4% increase). However, under unprotected conditions, four hybrids were superior (Tables 80 - 83). Under both protected and unprotected conditions, all the Bt cotton hybrids were superior to the non Bt check hybrids.
Fibre quality showed consistency over years. Ankur Jassi BG II and Tulasi 4 BG II showed higher fibre length than the other hybrids."
12. The abovesaid assessment will reveal BT check hybrid and non BT check hybrids. But none of them is disease resistant. However, simply leaf curl disease is not sufficient to come to the conclusion that it was due to defective seeds. To support this preposition, the counsel for the respondent has referred judgment "Gujarat State Coop. Mktg. Federation Ltd. versus Ghanshyambhai Fulabhai Patel", III (2011) CPJ 433 (NC) wherein it has been observed by the Hon'ble National Commission that 'poor germination of seeds could be result of various factors and not related to quality of seeds. Germination depends upon various factors like type of irrigation, fertility of soil etc. No credible evidence to prove FIRST APPEAL NO. 1252 OF 2010 9 seeds defective and accordingly, the order of the State Commission was set aside and the order of the District Forum dismissing the complaint was restored'. There is another judgment "Mahyco Seeds Ltd. versus G. Venkata Subba Reddy & Ors.", III (2011) CPJ 99 (NC) wherein it was observed by the Hon'ble National Commission that 'defects cannot be detected through visual inspections, need to be tested in laboratory and complainant did not inform OP about failure. Onus to prove defects in seeds on complainant which he failed'.
13. Here Agricultural Development Officer made the report Ex. C-4 on the basis of visual examination and not on the basis of any laboratory test. There is report Ex. C-6 of Asstt. Plant Protection Officer, Abohar in which he has stated that there was hot season and deficiency in rain, which was conducive to white fly as a result of which there was leaf curl disease, therefore, leaf curl virus cannot be attributed only due to quality of the seeds but it can due to other circumstances i.e. temperature, deficiency in rain, the quality of the land etc. and moreover, there is no report/letter written by the complainant to the dealer / manufacturer of the Seeds Company with regard to the deficiency as being now pointed out. The onus was on the complainant to prove that the defective seed was only responsible for non proper return of the crop but the appellant/complainant has not been able to lead sufficient evidence on the record that it was due to defective seeds only. Therefore, the learned District Forum was quite justified to dismiss the complaint. We do not see any infirmity in the order of the learned District Forum and the same is affirmed. FIRST APPEAL NO. 1252 OF 2010 10
14. In view of the above discussion, we do not find any merit in the appeal and the same is dismissed with no order as to costs.
15. The arguments in this appeal were heard on 26.9.2013 and the order was reserved. Now the order be communicated to the parties as per rules.
16. The appeal could not be decided within the statutory period due to heavy pendency of Court cases.
(Gurcharan Singh Saran) Presiding Judicial Member (Piare Lal Garg) Member October 8, 2013. (Jasbir Singh Gill) as Member FIRST APPEAL NO. 1252 OF 2010 11